Refusal to sell – FR – Abuse of dominant position

COMPETITION • FRENCH LAW • ABUSE OF DOMINANT POSITION

The refusal to sell or provide a service by an undertaking in a dominant position is likely to constitute an abuse within the meaning of Article L. 420-2 of the Commercial Code, which expressly refers to this practice. It applies to the refusal to sell information enabling the competitor to survive on the market, the discriminatory refusal to provide services, the refusal to supply a raw material to an undertaking with the aim of competing with it on the derivative product market, the refusal to sell equipment that only the dominant undertaking manufactures, or even the threat of refusal to sell to distributors who do not comply with commercial conditions.

However, as the Court of Cassation has pointed out, the mere finding of a refusal to sell is not sufficient to characterize an abusive practice. It must still be established that the object or effect of the refusal by the undertaking in a dominant position on a given market is to directly or indirectly limit or foreclose actual or potential competition and to strengthen its position on that market or a related or downstream market.